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Criminally Unjust

It's no coincidence that declining support
for capital punishment has been accompanied by increased mistrust of law
enforcement and discomfort with the war on drugs. A relative lull in violent
crime during the 1990s contributed to a reconsideration of harsh police practices
and prosecutorial tactics. But many people are willing to tolerate bad policing
so long as it's directed at bad guys. Few complain when guilty suspects are
deprived of their rights and coerced confessions prove true. It's the abuse of
innocent people or those guilty only of minor, nonviolent offenses that has
prompted some tentative public review of the current regime.

It's not just the use of DNA evidence to exonerate the wrongly
convicted that has aroused concern about criminal justice. The bias and
bloodthirst in law enforcement have simply become unseemly. During the past
several years, racial profiling became impossible to ignore; even conservatives
like Vice President Dick Cheney and Senator Joseph Lieberman belatedly condemned
it. The awful misdeeds and mistakes of FBI agents--from the attacks at Ruby
Ridge, Idaho, and Waco, Texas, to the framing of Bostonian Joseph Salvati, who
spent 30 years in prison for someone else's crime--made the nation's premier law
enforcement agency look like public enemy number one. Confronted with the sheer
meanness of their government--its continued imprisonment of nonviolent drug
offenders, a gratuitously cruel campaign against the medical use of marijuana,
and the expansion of the drug war to public schools, where students are treated
like suspects and randomly tested for drugs--people are apt to rediscover
traditional American values, like fairness and respect for individuals.

On occasion, the press has collaborated with the law enforcement system
in trampling people's rights: Irresponsible reporting by The New York
Times
was partly to blame for the federal government's wrongful prosecution of Wen Ho
Lee, the scientist at the nuclear lab in Los Alamos, New Mexico, who was charged
with espionage. Similarly, right-wing media partnered with Kenneth Starr in his
fanatical pursuit of Bill Clinton. But the press has also helped expose law
enforcement's crimes, which have been supported or ignored by politicians of both
major parties. Stories about thuggish cops and prosecutors and about ordinary
citizens spending years in prison for minor drug offenses are hard to resist.
These days, the press seems to be paying particular attention to the trashing of
defendants' rights by officials who are paid to protect them.

"Suspects' False Confessions Ignite Interrogation Debate," a recent Miami
Herald headline proclaimed in a story about a mentally retarded man
wrongfully imprisoned for 22 years thanks to a false, coerced confession.
According to a recent series in The Washington Post, police in Prince
George's County, Maryland, routinely coerce confessions--interrogating suspects
for days at a time in isolation, terrorizing them, and illegally depriving them
of counsel and sleep. Honest, skeptical prosecutors or DNA evidence can free
some people who are wrongly imprisoned by cops who don't distinguish between
innocence and guilt in their zeal to clear cases. (The Post examined four
instances in which people forced to confess were exonerated.)

But prosecutors are not always honest or alert, and DNA evidence is not always
available. Defendants are sometimes convicted on the basis of highly questionable
confessions. And often, in the absence of videotaping, challenges to the legality
of an interrogation and the truth of a confession involve the conflicting
testimony of defendants and police. Guess who judges generally believe.

Die-hard defenders of the bureaucracy assert that a few bad cops don't indict
an entire system. As defense attorneys will attest, however, the abusive tactics
used in Prince George's County and the targeting of people whose guilt is not
supported by evidence are not anomalous. Of course, many law enforcement
officials
are competent, energetic, and honorable; but some are not. After all, virtually
no one in the system is surprised when police officers perjure themselves on the
witness stand. (There's even a name for police perjury: "testilying.")

These injustices are compounded by the inadequate representation of poor
people who are prosecuted for serious crimes. This past April, a New York
Times series chronicled the failings of the indigent-defense system in New
York City. The Legal Aid Society (my former employer), which describes itself as
"the nation's oldest and largest provider of legal services to the indigent," has
been crippled by Mayor Rudolph Giuliani's budget cuts. According to theTimes, Legal Aid's caseloads and resources have been drastically reduced: Its
lawyers now handle only 50 percent of all felony and misdemeanor cases each year.
A few small defense organizations take on an additional 18 percent. The rest of
the cases are turned over to private attorneys, who are often inexperienced,
underpaid, and unsupervised. (When I worked for Legal Aid, the court-appointed
lawyers were guys in shiny suits.) According to the Times, many of these
appointed attorneys don't investigate the crimes with which their clients are
charged, don't visit the scenes, and don't hire expert witnesses, psychiatrists,
or pathologists. Many don't visit their clients in prison or interview them in
private. Some don't know the rules of evidence.

The Times interviewed several important players in New York's justice
system--including its chief judge and the state's director of criminal
justice--who confirmed the awful failings of indigent defense. Readers were
presented with stories about people wrongfully imprisoned thanks partly to bad
lawyering. Still, some observers were unimpressed. In Slate, Mickey Kaus
expressed skepticism about the harms caused by bad lawyers--as if he'd ever agree
to be represented by one. I doubt that many pundits would question the dangers
posed by untrained physicians who treat gravely ill patients without actually
examining them; but the average pundit is more likely to identify with a sick
person than with a suspect in a homicide.

When people start identifying with the victims of law
enforcement, they stop accepting its systematic abuses. Laws against medicinal
marijuana are vulnerable because their targets include respectable citizens. So
if we want to rein in bad cops and bad laws, we might first unleash them on the
white middle class. Imagine the political consequences of subjecting affluent
whites to the same degree of police surveillance and abuse that poor blacks and
Latinos endure. The war on drugs is a war on minorities, partly because police
pay relatively little attention to drug-law violations by whites. Nearly 70
percent of people in prison are blacks and Latinos, who together constitute about
25 percent of the nation's population. Prison conditions would improve
dramatically if statistics like these were reversed.

We would also witness huge improvements in crime control if police and
prosecutors were held accountable for misconduct. Criminal justice abuses are
threats to the public safety as well as to individual rights. When the innocent
are persecuted, the guilty roam free.

About the Author

Wendy Kaminer is a former senior correspondent for The American Prospect and a contributing editor at The Atlantic Monthly. She also serves on the national board of the American Civil Liberties Union.

A lawyer, social critic, and former Guggenheim Fellow, she writes about law, liberty, feminism, religion, and popular culture. Her latest book is Free for All: Defending Liberty in America Today. Other books she has written include Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of Piety; True Love Waits: Essays and Criticism; It's All the Rage: Crime and Culture; I'm Dysfunctional, You're Dysfunctional: The Recovery Movement and Other Self-Help Fashions; and A Fearful Freedom: Women's Flight from Equality. Kaminer's articles and reviews have appeared in many other publications, including The New York Times, The Wall Street Journal, The Nation, and Newsweek, and her commentaries have aired on National Public Radio.

Before embarking on her writing career, Kaminer practiced law as a staff attorney in the New York Legal Aid Society and the New York City Mayor's Office.